In Georgia, there are three grounds on which a will can be contested: testamentary capacity, undue influence, or execution formalities.
A testator (the person who signed the will) had testamentary capacity if, at the time of signing the will, she expressed a “decided and rational desire” as to the dispossession of her property. Courts look at three factors. First, did the testator recognize family and close friends, those individuals related to her by blood and affection? A will can disinherit anyone, even family members, but a testator must knowingly make that decision, rather than making a will when she is unable to identify her spouse or her children. Second, did the testator understand the nature of her property? She does not need to be able to recite the appraised value of her home or exact bank balance, but she must understand generally what property she owns (a house, a bank account, furniture, etc.). Third, did the testator understand that the purpose of the will was to distribute her property after her death? While certain conditions—such as dementia, mental illness, illiteracy, or drug or alcohol use or addiction—may raise questions about a testator’s capacity, none of those conditions are enough, without more, to prove incapacity.
A testator must execute a will voluntarily, free of undue influence. A will is considered invalid if another person constrains or coerces a testator doing that which she would not ordinarily have done. Undue influence is more than mere advice or suggestion; it is persuasion so strong as to make the testator unable to refuse the influencer. Undue influence can take many forms, and a lesser amount of influence may overcome the will of a person in a weakened state. Even a spouse may exert undue influence. Georgia courts will look at evidence about the relationship of the influencer and testator and all relevant circumstances to determine whether undue influence may have rendered a will invalid.
Georgia law dictates how a will must be signed, and these “execution formalities” must be met. A will must be in writing and be signed in the presence of two witnesses. The testator may sign by a mark if she is not capable of writing her name. The witnesses must be competent and 14 years of age or older. When the witnesses sign, they must do so in the presence of the testator. If the will was not properly signed, it is invalid.
If you have been served with a petition to probate a will, and you are considering whether to challenge the validity of the will, you may have a very short time—as little as ten calendar days—to file your objection. Please consult with Baumbusch Law immediately for advice about whether your concerns are sufficient grounds to mount a will challenge.